IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-70026

PAUL G. DEVOE, III, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:14-CV-151

Before OWEN, ELROD, and COSTA, Circuit Judges. 

PER CURIAM:*

Paul G. Devoe, III, was indicted, tried, and convicted for the murder of 

Haylie Faulkner and Danielle Hensley in Texas state court. After his direct 

appeal and state habeas petition proved fruitless, Devoe filed a federal habeas 

petition pursuant to 28 U.S.C. § 2254 in district court. The district court denied

habeas relief and denied a certificate of appealability on each of Devoe’s claims. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 9, 2018

Lyle W. Cayce

Clerk

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2

Devoe also filed a motion asking the district court to give him funds for an 

expert to assist in developing claims, which the district court denied. Devoe

now requests that this court issue a certificate of appealability on a number of 

habeas claims and also appeals the district court’s denial of his motion for 

funding. We DENY a certificate of appealability on Devoe’s claims and 

AFFIRM the district court’s denial of Devoe’s motion for funding.

I.

A.

Texas charged Devoe with capital murder for the deaths of Haylie 

Faulkner and Danielle Hensley. His case proceeded to a jury trial. The state’s

evidence showed that Devoe previously dated Faulkner’s mother, and Devoe 

killed both Faulkner and Hensley during a multiple day criminal episode. The 

jury convicted Devoe, finding him guilty beyond a reasonable doubt of capital 

murder. 

The trial then proceeded to the punishment phase. The state’s evidence 

focused on the murders of Faulkner and Hensley, as well as the murder of 81-

year-old Betty DeHart during the same multiple day criminal episode. The 

state also presented ample evidence of Devoe’s lengthy criminal history and 

history of abusing women. The jury heard testimony from multiple women who 

obtained protective orders against Devoe after violent incidents. In addition, 

Devoe’s family confirmed that he had attempted to strangle his own mother 

with a telephone cord. 

There was significant evidence that Devoe abused alcohol and drugs. 

Witnesses who knew Devoe testified that Devoe was more violent when he 

abused these substances. Expert witnesses also testified to Devoe’s substance 

abuse. As an expert for the defense, Dr. Robert Cantu admitted that if given 

access to drugs, alcohol, and weaker inmates, Devoe “would be a future 

danger.” A.P. Merillat, a senior criminal investigator for the Texas Special 

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Prosecution Unit, testified that inmates have access to drugs, alcohol, and 

weapons. He also testified that violent crimes occur in Texas prisons. Dr. 

Richard Coons, a psychiatrist, testified for the state without objection from 

Devoe. After interviewing Devoe and reviewing his medical records, Dr. Coons

concluded that Devoe would be a continuing threat to society. The jury 

returned its verdict, answering the special-issue questions in a manner 

requiring the imposition of a death sentence. 

The Texas Court of Appeals affirmed Devoe’s conviction and sentence on 

direct appeal. Devoe v. State, 354 S.W.3d 457, 468—76 (Tex. Crim. App. 2011). 

While his direct appeal was pending, Devoe also filed an application for state 

habeas corpus. The state court denied Devoe’s requested habeas corpus relief, 

and the Texas Court of Criminal Appeals affirmed. Ex parte Devoe, WR-80, 

402-01, 2014 WL 148689, *1 (Tex. Crim. App. Jan. 15, 2014). 

B.

Before filing his federal habeas petition, Devoe sought funding in federal 

court under 18 U.S.C. § 3599(f) to retain an expert to assist in developing his 

claims. Devoe then filed a federal habeas petition under 28 U.S.C. § 2254 but 

sought to stay the federal proceedings in order for him to exhaust his habeas 

claims in state court under Martinez v. Ryan, 132 S. Ct. 1309 (2012). In that 

same motion, alleging incompetency, Devoe asserted that his constitutional 

rights would be violated if he had to proceed with his federal petition while 

incompetent. He sought a stay and abatement of the proceedings “until such 

time, if ever, he regain[ed] competency.” The district court granted the motion 

to stay to allow Devoe to exhaust his Martinez claims in state court but denied 

the motion to stay to the extent Devoe requested a stay until his competency 

could be restored. 

After Devoe asserted his unexhausted claims in state court, the Texas 

Court of Criminal Appeals determined that these claims failed to satisfy the 

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requirements for filing a successive state habeas application and thus

dismissed Devoe’s application. Ex parte Devoe, WR-80, 402-02, 2016 WL 

157980, at *1 (Tex. Crim. App. Jan. 13, 2016). The district court then lifted the 

stay of these federal proceedings. 

In his federal habeas petition, Devoe raised 15 grounds for relief. In turn, 

the district court addressed each of these claims and denied habeas relief on 

all of them in a comprehensive, 130-page opinion. The district court also denied 

his motion for funding and denied a certificate of appealability for each of 

Devoe’s claims. Devoe now appeals the district court’s denial of his 18 U.S.C. § 

3599(f) motion for expert funding and seeks a certificate of appealability as to 

several claims.

II.

A.

Under the Antiterrorism and Effective Death Penalty Act, a state 

prisoner may only appeal “the final order in a habeas corpus proceeding in 

which the detention complained of arises out of process issued by a State court” 

upon obtaining a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). This is 

a “jurisdictional prerequisite” to the adjudication of a habeas petitioner’s 

appeal. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In order to obtain a 

certificate of appealability, a petitioner must make “a substantial showing of 

the denial of a constitutional right.” Id. at 336; 28 U.S.C. § 2253(c)(2). This 

requirement is “not coextensive with a merits analysis,” but rather the court 

of appeals must decide only whether “jurists of reason could disagree with the 

district court’s resolution of the [petitioner’s] constitutional claims. . . .” Buck 

v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El, 537 U.S. at 327). Put 

differently, a “court of appeals should limit its examination at the COA stage 

to a threshold inquiry into the underlying merits of the claims, and ask only if 

the District Court’s decision was debatable.” Id. at 774 (alteration omitted).

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Moreover, where the district court denies a petitioner relief as to a 

particular claim on procedural grounds—e.g., failure to exhaust, procedural 

default, and the like—the petitioner must also show that “jurists of reason 

would find it debatable whether the district court was correct in its procedural 

ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). “[A]ny doubts as to 

whether a COA should issue must be resolved in [Devoe’s] favor” because this 

case involves the death penalty. Avila v. Quarterman, 560 F.3d 299, 304 (5th 

Cir. 2009).

Under AEDPA, a federal court may not grant habeas relief unless the 

petitioner has first exhausted state remedies. 28 U.S.C. § 2254(b)(1)(A). If a 

claim has been exhausted in state court and a state court has ruled on the 

merits of the claim, a habeas petitioner is only entitled to relief if the 

adjudication of the claim: (1) “resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or (2) resulted in a 

decision that was based on an unreasonable determination of the facts in light 

of the evidence presented in the State court’s proceeding.” 28 U.S.C. 

§ 2254(d)(1)—(2).

Thus, to each of Devoe’s claims that was decided by the state court, the 

relevant question is whether “jurists of reason could disagree” about whether 

the state court’s disposition of Devoe’s claim involved an unreasonable 

application of Supreme Court case law or an unreasonable determination of 

the facts. Buck, 137 S. Ct. at 773; 28 U.S.C. § 2254(d)(1)—(2).

B.

Devoe seeks a certificate of appealability as to several claims he raised 

in his initial habeas petition. Devoe’s brief is difficult to understand. While we 

endeavor to interpret it in the light most favorable to the petitioner, we do not 

make arguments for counsel. As best we can tell, Devoe asserts that he is 

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entitled to a certificate of appealablity on his claims that: (1) the state violated 

his constitutional rights by presenting the allegedly false and misleading 

testimony of its expert, A.P. Merillat; (2) his trial counsel rendered ineffective 

assistance in his preparation for Merillat’s testimony; (3) his trial counsel 

rendered ineffective assistance in his treatment of Dr. Richard Coons’s 

testimony; and (4) his trial counsel rendered ineffective assistance in his

investigation and presentation of mitigating evidence. We consider each in 

turn.

Devoe makes multiple claims based on the testimony of state expert, A.P. 

Merillat. At trial, Merillat testified that he had more than twenty years of 

experience investigating and assisting in the prosecution of crimes committed 

within the Texas Department of Criminal Justice. Without any objection from 

Devoe, Merillat explained how Texas inmates have access to contraband, 

including drugs, alcohol, and weapons, and he offered examples of crimes that 

occur within Texas prisons. Based on decades spent investigating these 

crimes, he explained that even inmates who received sentences of life without 

parole enjoy a “degree of freedom.” To quote the district court’s opinion, 

Merillat offered “his unremarkable expert opinions” that Texas prison inmates 

have access to drugs, alcohol, and weapons, and violent crimes take place

there. 

Devoe asserts that Merillat: (1) “exaggerated instances of violence in [the 

Texas Department of Criminal Justice] because he failed to take into 

consideration how that violence related to TDCJ’s population as a whole”; and 

(2) “added unsolicited anecdotal comments” about a recent killing by another 

cellmate—when, in reality, the death was accidental, and the inmates were not 

cellmates. He asserts that these alleged misrepresentations in Merillat’s 

testimony merit relief under Brady v. Maryland, 373 U.S. 83 (1963), Napue v. 

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Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972). 

We consider each of Devoe’s legal claims in turn.

1. Brady Claim

The district court determined that Devoe did not fairly present his Brady

claim in state court, so that claim is not exhausted.1 Even so, the district court 

reviewed Devoe’s Brady claim de novo as authorized by 28 U.S.C. § 2254(b)(2)..

In denying relief, the district court explained, “the alleged errors identified by 

Petitioner in Merillat's trial testimony either relate to insignificant details in 

those anecdotal accounts or are completely refuted by the sworn assertions 

contained in Merillat's affidavit.” 

Merillat produced a detailed affidavit in response to Devoe’s state habeas 

petition, specifically addressing each of the alleged false statements identified 

by Devoe. While Devoe argues that Merillat “exaggerated instances of violence 

in TDCJ,” Merillat’s affidavit contends that none of the statistics offered by 

Devoe actually contradict Merillat’s testimony at trial. Similarly, Merillat’s 

affidavit argues that while the inmates were not technically cell mates, 

Merillat’s statement was not misleading because they were located in the same 

cell at the time of the incident.

A Brady violation consists of: (1) “the evidence at issue must be favorable 

to the accused, either because it is exculpatory, or because it is impeaching”; 

(2) “that evidence must have been suppressed by the state”; and (3) “prejudice 

must have ensued” – i.e., the evidence must be material. Banks v. Dretke, 540 

U.S. 668, 691 (2004). “[E]vidence is ‘material’ within the meaning of Brady

when there is a reasonable probability that, had the evidence been disclosed, 

the result of the proceeding would have been different.” Smith v. Cain, 565 

 

1 Devoe does not appear to contest the district court’s finding concerning exhaustion. 

In light of the district court’s decision to review this claim de novo, we will also review it. 

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U.S. 73, 75 (2012). “Reasonable probability,” however, “does not mean that the 

defendant would more likely than not have received a different verdict with 

the evidence, only that the likelihood of a different result is great enough to 

undermine confidence in the outcome of the trial.” Id. at 75-76 (alteration 

omitted).

Devoe seems to argue that the state violated Brady by “withholding” 

alleged inaccuracies in Merillat’s testimony. According to Devoe, this evidence 

was favorable to him because the prosecution had a “weak case” on the issue 

of future dangerousness without this evidence. As to Brady’s second prong, 

Devoe argues that the testimony was “suppressed” because when Merillat told

the story about the prison death, Merillat did not disclose that the death did 

not involve cellmates and was an accidental, not intentional, death. According 

to Devoe, he was prejudiced by this “non-disclosure” because without Merillat’s 

testimony, the state could not demonstrate that Devoe would be a danger in 

prison. Devoe maintains that these alleged inaccuracies are actually 

falsehoods.

We deny Devoe’s request for a certificate of appealability on this claim. 

First, as the district court recognized and Devoe does not contest, his Brady

claim is unexhausted. 28 U.S.C. § 2254(b)(1)(A) (requiring a habeas petitioner 

to exhaust “the remedies available in the courts of the State”). Next, even 

assuming arguendo that jurists of reason could disagree with the district 

court’s conclusion that Merillat’s testimony was not inaccurate, Devoe has not 

demonstrated that jurists of reason could disagree with the district court’s 

conclusion that Devoe has failed to satisfy the materiality element of a Brady

claim. Buck, 137 S. Ct. at 773. As the district court noted, there was significant

evidence of Devoe’s potential for future dangerousness, even excluding 

Merillat’s allegedly false testimony. In addition to the double capital murder 

of which Devoe was convicted, there was “overwhelming evidence” that Devoe 

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had murdered four additional people and attempted to kill another. The jury 

also heard evidence of Devoe’s violent background, including prior convictions

of aggravated harassment, endangering the welfare of a child, assault, 

criminal trespass, and disorderly conduct. See Devoe, 354 S.W.3d at 466-67. 

Finally, the jury heard unrebutted testimony from another witness, Dr. Coons,

that “drugs and alcohol [are] pretty prevalent in correctional facilities” and 

that “any type of drug found on the streets of Austin basically could be found 

in a Texas prison.” Both Dr. Coons and Dr. Cantu, an expert for the defense, 

agreed that Devoe would likely be a continued threat if given access to drugs, 

alcohol, and weaker inmates. 

Accordingly, we conclude that jurists of reason could not disagree as to 

whether there is a “reasonable probability” that, had Merillat either “disclosed” 

Devoe’s cited statistics or clarified the prison death incident, “the result of the 

proceeding would have been different.” Smith, 565 U.S. at 75. As noted, even 

with such “disclosure,” there was extensive evidence presented to the jury 

regarding Devoe’s potential for future dangerousness, and none of the allegedly

“withheld” information undermines this evidence. Therefore, we deny a 

certificate of appealability on Devoe’s Brady claim. 

2. Napue/Giglio claim

Devoe next seeks a certificate of appealability on his Napue/Giglio claim

based on Merillat’s testimony. The state habeas court concluded, and the 

district court agreed, that Devoe’s Napue/Giglio claim is without merit. After

“independently review[ing] the entirety of Merillat’s trial testimony, the 

Petitioner’s voluminous pleadings and exhibits in Petitioner’s state habeas 

corpus proceeding, and Petitioner’s pleadings in this proceeding,” the district 

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court agreed with the state habeas court’s determination that Merillat’s 

testimony was neither false nor misleading. 

To make a successful Napue/Giglio claim, a defendant must 

demonstrate: (1) “the testimony was actually false; (2) the state knew it was 

false; and (3) the testimony was material.” Canales v. Stephens, 765 F.3d 551, 

573 (5th Cir. 2014). Evidence is “material” if “there is any reasonable likelihood 

that the false testimony could have affected the judgment of the jury.” Id.

(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). 

Devoe’s claim is based on a single, allegedly false statement by Merillat. 

At trial, Merillat denied that it was one of his jobs to testify in capital cases. 

Devoe claims Merillat’s statement was false, citing a Special Prosecution Unit 

document which states that its investigators are qualified expert witnesses on 

“death penalty cases on the future danger issues, and violence in the prison 

system.” This document listed Merillat as a contact person. Devoe faults the 

state for failing to correct Merillat’s alleged misstatement.

Devoe has not demonstrated that “jurists of reason could disagree” with 

the district court’s conclusion that Devoe is not entitled to a certificate of 

appealability on his Napue/Giglio claim. First, Devoe has not established that 

jurists of reason could disagree as to whether Merillat’s statement was false. 

See Canales, 765 F.3d at 573 (holding that the district court was correct in 

denying a Giglio/Napue claim when the petitioner did not establish that the 

testimony was false). Merillat, in his affidavit, states that his supervisors have 

told him multiple times that he is not “required to testify in any capital case.” 

Members of the Special Prosecution Unit are qualified and available to testify 

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as expert witnesses; they are not required to do so. Devoe does not even 

attempt to rebut Merillat’s affidavit in his brief.2

In addition, Devoe does not offer evidence for the proposition that the

state “knew” any of the statements that Devoe alleges were false were, in fact, 

false. Canales, 765 F.3d at 573 (holding that the district court was correct in 

denying a Giglio/Napue claim when the petitioner did not establish that the 

State knew the testimony was false). As the district court explained, Devoe 

fails “to allege any specific facts showing that the prosecution knowingly 

elicited any factually inaccurate or misleading testimony from Merillat.” As 

such, he forfeits any argument on this point. See Lookingbill v. Cockrell, 293

F.3d 256, 263 (5th Cir. 2002) (explaining that when a habeas petitioner “fails 

to brief an argument adequately,” it is forfeited).

Finally, as the district court concluded and as explained in relation to 

Devoe’s Brady claim, there was significant evidence supporting a conclusion of 

potential dangerousness apart from any of Merillat’s testimony. It is also hard 

to see how there would have been any meaningful impeachment value from 

showing that Merillat was, in fact, required to testify. “[J]urists of reason” 

could not disagree with the district court’s determination that the state court 

correctly concluded that Devoe failed to show that the allegedly false testimony 

had a “reasonable likelihood” of “affect[ing] the judgment of the jury.” Buck,

137 S. Ct. at 773.

For these reasons, we deny a certificate of appealablity on Devoe’s 

Napue/Giglio claim.

 

2 Devoe also points to the alleged “exaggerations” about prison violence and the 

anecdote about the death of an inmate as examples of false testimony by Merillat. For reasons 

given previously, jurists of reason could not disagree with the district court’s determination 

that Devoe’s Napue/Giglio challenge fails. 

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3. Ineffective assistance of counsel claims

Devoe also seeks a certificate of appealability on a series of an ineffective

assistance of counsel claims. In this kitchen-sink effort, he objects to trial 

counsel’s performance in (a) its preparation for Merillat’s testimony; (b) its 

treatment of Dr. Coons’s testimony; and (c) its investigation and presentation 

of mitigating evidence. 

Under Strickland, Devoe must show: (1) deficient performance; and (2) 

prejudice. See Harrington v. Richter, 562 U.S. 86, 104 (2011). “To establish 

deficient performance, a person challenging a conviction must show that 

‘counsel’s representation fell below an objective standard of reasonableness.’” 

Id. (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). As to 

deficiency, there is a “strong presumption that counsel’s representation was 

within the wide range of reasonable professional assistance.” Id. To show 

prejudice, a defendant “must demonstrate a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id.

His first claim is based on trial counsel’s conduct in preparation for 

Merillat’s testimony. Devoe admits that trial counsel hired a defense expert to 

advise and testify during the punishment phase of Devoe’s trial. He contends, 

however, that his trial counsel failed to independently investigate and prepare 

for Merillat’s testimony concerning future dangerousness. 

Devoe is not entitled to a certificate of appealablity on this claim. First, 

it is well-established that evidence of future dangerousness is constitutionally 

admissible. Barefoot v. Estelle, 463 U.S. 880, 896–903 (1983) (denying 

petitioner’s claim that the Constitution barred the testimony of psychiatrists 

who testified about his future dangerousness). This being so, Devoe’s trial 

counsel’s failure to object to the admission of Merillat’s testimony could not be 

objectively unreasonable, nor could jurists of reason disagree on this point. See 

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Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (“[F]ailure to assert a 

meritless objection cannot be grounds for a finding of deficient performance.”)

Moreover, Tom Weber, a trial attorney for Devoe, produced a detailed 

affidavit, responding to Devoe’s allegations. In this affidavit, Weber explained 

that trial counsel hired Larry Fitzgerald, as an expert witness, because he had 

significant experience testifying in direct rebuttal to Merillat’s testimony, in 

particular. Devoe’s trial counsel met frequently with this expert witness before 

he testified at trial. There is “a strong presumption that counsel’s 

representation was within the wide range of reasonable professional 

assistance.” Harrington, 562 U.S. at 104. We do not believe that jurists of 

reason could disagree as to whether Devoe’s trial counsel’s performance was 

objectively unreasonable in relying on Fitzgerald’s expert testimony given that 

Fitzgerald had significant experience testifying in direct rebuttal of Merillat. 

We conclude that jurists of reason could not disagree with the district court’s 

determination that Devoe’s trial counsel’s performance was objectively 

reasonable. 

Furthermore, while the state court did not address Strickland’s 

prejudice prong, the district court reviewed that issue de novo and found no 

prejudice. Devoe does not explain what particular information (only 

referencing “a wealth of information”) about Merillat—waiting to be discovered 

by a proper investigation—would have impacted the result of the case. Without

more, we conclude that jurists of reason could not disagree with the district 

court’s determination that Devoe has not demonstrated a “reasonable 

probability that, but for” any error by his trial counsel in not preparing 

properly for Merillat’s testimony “the result of the proceeding would have been 

different.” Harrington, 562 U.S. at 104. For these reasons, we deny a certificate 

of appealablity on this ineffective assistance of counsel claim.

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Devoe’s next ineffective assistance of counsel claim is based on the 

testimony of Dr. Coons. Dr. Coons testified as a psychiatrist on behalf of the 

state, and Devoe did not object. Before trial, Devoe interviewed Devoe and 

reviewed his medical records. At trial, he agreed with defense witness, Dr. 

Cantu, that Devoe would be a continuing threat to society in prison. In 

reaching this conclusion, Dr. Coons considered: (1) Devoe’s long history of 

violence; (2) the awful set of facts related to the offense; (3) Devoe’s attitude 

toward violence; (4) Devoe’s antisocial personality behaviors; (5) Devoe’s lack 

of any remorse; and (6) the society that Devoe would face in prison.

Devoe contends that his trial counsel was ineffective for failing to: (1) 

“challenge the admissibility of [Dr. Coons’s] testimony on future 

dangerousness”; and (2) “challenge the reliability and admissibility of Dr. 

Coons’s testimony on the motivations of inmates serving life without parole.” 

The state court rejected his ineffective assistance of counsel claim on the 

merits, and the district court agreed. 

As to Dr. Coons’s testimony about “future dangerousness,” Devoe relies 

on a concurring opinion issued during his state habeas proceedings. When the 

Texas Court of Criminal Appeals affirmed the trial court’s denial of Devoe’s 

application for state habeas, three judges concurred in separate opinion. Ex 

parte Devoe, No. WR-80, 402-01, 2014 WL 148689, *1 (Tex. Crim. App. Jan. 15, 

2014). This concurring opinion mentions a prior case which held Dr. Coons’s 

testimony inadmissible in that case. Id. (J. Womack concurring). The

concurring opinion explained that its concurrence in Devoe’s case was based 

on the “understanding that this court has not relied in any way on the trial 

judge’s findings that Dr. Richard Coons’s testimony on future dangerousness 

was relevant and scientifically reliable.” Id. Relying on this concurring opinion, 

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Devoe argues that a certificate of appealability is appropriate because jurists 

of reason have, in fact, disagreed with the district court’s conclusion. 3

Devoe’s defense counsel produced an affidavit explaining the rationale 

for declining to pursue a challenge to the admissibility of Dr. Coons’s 

testimony.. In particular, the affidavit explains that a challenge was not 

pursued because, inter alia, defense counsel knew that the testimony would 

most likely be admitted and did not want to give Dr. Coons a preview of 

defense’s strategy and planned questions. 

While Dr. Coons’s testimony was held inadmissible in Coble v. State, 330 

S.W.3d 253 (Tex. Crim. App. 2010), that state court made clear that its decision 

was based on the record “in this particular case.” See Coble, 330 S.W.3d at 279. 

To succeed on his claim, then, Devoe must demonstrate that Dr. Coons’s 

testimony was inadmissible based on the record in this case. Because Devoe 

makes no effort to do so, we conclude that jurists of reason could not disagree 

as to whether trial counsel’s performance here was deficient.

With respect to prejudice under Strickland, we believe that jurists of 

reason could not disagree as to whether Devoe has demonstrated a “reasonable 

probability” that the suppression of Dr. Coons’s testimony would have altered 

the outcome, especially in light of the overwhelming evidence to support the 

jury’s determination on future dangerousness, as discussed earlier.4

As to Dr. Coons’s testimony about “inmates serving life without parole,” 

Devoe argues that trial counsel was ineffective for failing to object to Dr. 

Coons’s “highly speculative and scientifically unsupported testimony.” Devoe’s 

 

3 Disagreement in state court does not automatically warrant a certificate of 

appealability because AEDPA applies at this stage. 

4 The concurring opinion from his state habeas case, on which Devoe relies, actually 

undermines his claim because those judges concluded that Dr. Coons’s testimony was 

inadmissible but also agreed that relief should be denied. See Ex parte Devoe, 2014 WL 

148689, *1.

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challenge is focused on Dr. Coons’s testimony that an inmate sentenced to life 

imprisonment without parole has nothing to lose.5 Devoe offers only conclusory 

statements (and a reference to argument in his federal habeas petition) that 

the district court erred in finding no deficient conduct or prejudice. Because 

Devoe fails to brief this argument adequately, we deem it abandoned. See 

Lookingbill, 293 F.3d at 263. For these reasons, we deny a certificate of 

appealability on this second ineffective assistance of counsel claim. 

In Devoe’s third and final ineffective assistance of counsel claim, he 

alleges that trial counsel was ineffective for failing to adequately investigate 

and present mitigating evidence.6 The state habeas court rejected this claim 

on the merits, and after a careful, independent review of the entirety of the 

voluminous documentation offered by Devoe, the district court independently 

concluded that trial counsel did not fall below an objective level of 

reasonableness.

In the context of preparing for sentencing, “investigations into 

mitigating evidence ‘should comprise efforts to discover all reasonably 

available mitigating evidence.’” Wiggins v. Smith, 539 U.S. 510, 524 (2003)

(citations omitted). “[T]he failure to present a particular line of argument or 

evidence is presumed to have been the result of strategic choice.” Taylor v. 

Maggio, 727 F.2d 341, 347 (5th Cir. 1984). “There are no ‘strict rules’ for 

 

5 While Devoe states that he was “no doubt prejudiced” because of this alleged 

ineffectiveness by his trial counsel, he does not develop this argument in his certificate of 

appealability brief. 

6 Devoe also attempts to articulate another Wiggins claim related to his alleged 

incompetency, but he does not point to any error by trial counsel. He contends that this 

Wiggins claim was defaulted because of inadequate assistance of state habeas counsel. 

However, Devoe’s counsel conceded during oral argument that he can only offer “mere 

speculation” on this claim. We have held that “bare allegations do not suffice” in articulating 

a Wiggins claim. Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993). Here, we do not even

have a specific bare allegation. Accordingly, jurists of reason could not disagree with the 

district court’s determination that Devoe’s incompetence-based claim “does not furnish a 

basis for federal habeas corpus relief.”

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counsel’s conduct beyond ‘the general requirement of reasonableness.’” Trottie 

v. Stephens, 720 F.3d 231, 242 (5th Cir. 2013).

While Devoe produced a list of allegedly mitigating evidence that he 

claims his counsel could have found and used during the punishment stage of 

his trial, Devoe does not provide an explanation for why his counsel’s actual 

investigation was deficient. His counsel’s affidavit explains the detailed 

investigation conducted, including: (1) retaining a capital murder mitigation 

expert; (2) obtaining all of Devoe’s medical, school, and criminal records; and 

(3) contacting and interviewing all relevant family members and friends who 

could provide possible mitigating evidence. Devoe’s counsel had to dismiss an 

initial mitigating expert, and it retained another one, who interviewed Devoe’s 

family members personally. 

The district court conducted its own de novo review of Devoe’s claim and 

concluded that Devoe’s “complaint of ineffective assistance of counsel fails to 

satisfy either prong of Strickland analysis.” In fact, the district court explains 

that most of the purportedly “new” evidence brought forward by Devoe was 

cumulative in nature. Jurists of reason could not disagree as to whether trial 

counsel was deficient in preparing and presenting mitigating evidence.

Moreover, we believe that jurists of reason could not disagree as to 

whether Devoe has demonstrated “a reasonable probability” that “but for” 

counsel’s alleged insufficient investigation “the result of the proceeding would 

have been different.” Harrington, 562 U.S. at 104. Devoe only makes 

conclusory statements to support his prejudice argument. As we have 

explained, “a defendant who alleges a failure to investigate on the part of his 

counsel must allege with specificity what the investigation would have 

revealed and how it would have altered the outcome of the trial.” Druery v. 

Thaler, 647 F.3d 535, 541 (5th Cir. 2011) (emphasis added). Moreover, the 

district court determined that Devoe did not show that “the outcome of the 

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punishment phase of [his] capital murder trial would have been any different” 

even if trial counsel had presented all the allegedly mitigating evidence and 

arguments described by Devoe in his habeas petition. Jurists of reason could 

not disagree with the district court’s determination that Devoe is not entitled 

to a certificate of appealability on the issue of whether he was prejudiced. 

III.

Finally, Devoe argues that the district court erred in denying his motion 

for funding under 18 U.S.C. § 3599(f). He requested funding to retain an expert 

to assist him in developing his claim that the introduction of the testimony of 

Merillat violated his constitutional rights. Devoe does not seek a certificate of 

appealablity here because a certificate of appealablity “is not necessary to 

appeal the denial of funds for expert assistance.” Smith v. Dretke, 422 F.3d 269, 

288 (5th Cir. 2005). Accordingly, we review the district court’s order denying 

Section 3599(f) funding for an abuse of discretion. See id.

Section 3599 provides in relevant part:

(f) Upon a finding that investigative, expert, or other services are 

reasonably necessary for the representation of the defendant, whether in 

connection with issues relating to guilt or the sentence, the court may 

authorize the defendant's attorneys to obtain such services on behalf of 

the defendant and, if so authorized, shall order the payment of fees and 

expenses therefor under subsection (g). 

18 U.S.C. § 3599(f) (emphasis added). As the text of Section 3599 indicates, the 

district court “may” authorize the provision of services only if it “find[s] such 

services are “reasonably necessary.” Id.

In this case, Devoe requested funding in order to retain an expert to 

assist him in developing his claim that the introduction of the testimony of 

Merillat violated his constitutional rights. According to Devoe, it was 

“reasonably necessary” to obtain an expert to “review [Merillat’s] testimony 

and write an affidavit explaining where [he] got things wrong.” In denying this 

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motion, the district court explained that because a state court considered the 

merits of Devoe’s arguments, federal habeas review is limited to the state 

court’s record. The district court explained that any “additional factual 

development is irrelevant in the adjudication of exhausted claims.”

We conclude that the district court did not abuse its discretion in denying 

Devoe’s request for Section 3599 funding. While the state habeas court rejected 

Devoe’s claims arising from Merillat’s testimony because they were 

procedurally barred, it also rejected these claims on the merits—a fact Devoe 

never challenges—and so a federal court’s “review under § 2254(d)(1) is limited 

to the record that was before the state court that adjudicated the claim on the 

merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see Blue v. Thaler, 665 

F.3d 647, 656 (5th Cir. 2011) (explaining that “Pinholster prohibits a federal 

court from using evidence that is introduced for the first time” in a federal 

court in the context of an Atkins claim). Thus, even if a federal court granted

Devoe’s motion for expert funding, a federal court could not consider any

additional facts concerning Merillat’s testimony discovered by such an expert.

Any awarded funding would be a misallocation of federal resources. 

In any event, Devoe requested funding to develop expert testimony that 

would be cumulative of evidence that was already developed in the state 

proceedings. As the district court explained, Devoe’s claims concerning 

Merillat’s testimony “have been thoroughly litigated in and rejected by the 

state court.” Moreover, the subject of Devoe’s sought-after expert testimony—

Merillat’s alleged mistatements at trial—does not require expert testimony, in 

contrast with, for example, expert testimony about a defendant’s mental 

condition. Basically, Devoe attempts to attach an “expert” label to evidence 

already in the record about which the court, not a hired expert, would make 

the ultimate legal conclusion.

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We conclude that it was not an abuse of discretion for the district court 

to find that expert funding was not “reasonably necessary.”7 Accordingly, we 

affirm the district court’s denial of this motion.

CONCLUSION

In light of the foregoing discussion, we DENY a certificate of 

appealability on Devoe’s habeas claims and AFFIRM the district court’s denial 

of Devoe’s motion for funding.

 

7 The Supreme Court recently granted certiorari in order to consider whether we 

erred in applying the “reasonably necessary” standard in upholding a denial of Section 

3599(f) funds after the district court determined that the underlying claim failed. See Ayestas 

v. Davis, No. 16-6795, 137 S. Ct. 1433, 1434 (2017). Here, we have not assessed the strength 

of the underlying claim. Instead, we conclude that the district court’s denial of this motion 

was not an abuse of discretion given that Devoe’s claims are exhausted and the sought-after 

evidence would be merely cumulative on this record.

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